Finding The Right Time To Leave Employees Reasonable Compensation

The twenty-ninth provision of the labor law stipulates that the employer may not terminate the labor contract during the prescribed medical period if the worker is sick or injured.

There are similar provisions in the labor contract law and the industrial injury insurance Ordinance.

However, these Provisions have been ignored in labor disputes between Anna and his units.

The reason is that after Anna suspended medical treatment, she paid her wages in due course, and she applied for labor arbitration in the medical treatment period.

Therefore, the arbitration confirms its labor relations until the time of discharge.

It should be said that this should not affect the treatment of work-related injuries that should be enjoyed. However, after the unit has brought a lawsuit, the court has calculated the work-related injury treatment on the basis of this arbitration confirmation time, so that its legitimate rights and interests have been seriously infringed.

To this end, the legal aid and research center of the Beijing public welfare migrant worker helped sail for 3 years and gave him a one-time disability compensation, wage gap and other expenses totaling 67250.4 yuan.

Anna is a man in Qiao Cheng District, Bozhou City, Anhui province. Although she is a female and grew up in rural areas, she is hard-working and hardworking, and is also good at cooking and catering management.

In April 1, 2012, at the age of 45, she successfully applied for a job in a hotel in Beijing. She served as a chef in charge of the guests who live in hotels, especially the group meals of the tour group guests and the internal staff work meals.

After entering the office, the hotel did not sign a labor contract with her, but the salary was orally agreed to be 2000 yuan per month.

Because of her long working hours and low salary, she wanted to quit her job in the past two months. Li, deputy general manager of the hotel, told her: "quit the Kitchen helpers, so that your monthly salary can reach 3790 yuan."

In this way, Anna stayed.

Unexpectedly, another two months, that is, in August 30, 2012, when she was working in the kitchen, a large area of burns caused by a gas leak explosion was sent to the army general hospital for treatment.

The diagnosis of the hospital was that the wound was distributed in the face, neck and extremities, among which the superficial degree of burn was 15%, the depth was 15%, and the degree of grade III was 5%.

In October 19, 2012, Anna was discharged from the hospital.

However, the hotel paid her wages in full until she was hospitalized and discharged from January 2013.

Because the guesthouse emphasized that she did not contribute to the unit after she was injured, she could not pay the full amount of wages, and she submitted the arbitration application to the arbitration organization in a fit of anger.

At this point, her work injury identification procedure has not yet started, so the arbitration committee identified the labor relations between the two sides until the time of discharge in October 19, 2012.

At the same time, it decided that the hotel had paid 30 thousand yuan for the labor contract.

The hotel refused to accept the ruling and brought a lawsuit to the court.

In October 9, 2013, Anna came to seek help from the legal aid and research center of the public welfare migrant worker after several inquiries.

She told fan lawyer that her case had already been arbitraged, but the unit went to court again.

Anna stretched out his arm, palm and back of his hand, and showed his hair to the lawyer.

She said she was a chef. Now she looks for a job.

But she has to live in Beijing. No money!

When the first trial session was held, Anna's work injury conclusion had been made, but the court decided to cancel the labor relationship between the two sides at the time of discharge in October 19, 2012.

Anna appealed against the first instance, but the second trial upheld the original verdict.

"This is a mistake in the determination of the time to remove labor relations, which has laid a hidden danger for Anna's future industrial injury rights protection."

The lawyer said.

After Anna's disability rating was determined, the hotel still refused to take responsibility. The lawyer helped Anna in November 19, 2014 to lift the labor relationship with the hotel, and sent a letter in writing to release the notice of labor relations.

At the same time, Anna applied for arbitration again, asking the hotel to pay the economic compensation and the one-time disability allowance 19622.4 yuan, the one-time industrial injury medical subsidy 17379 yuan, the disposable disability employment subsidy 17379 yuan and other expenses to the hotel.

However, the result of this arbitration is that although the time for the dissolution of labor relations between the two sides was confirmed in November 19, 2014, they did not support the economic compensation for the termination of labor relations, and only supported 58190.4 yuan.

Considering that the hotel will be prosecuted, Anna filed a lawsuit once he received the arbitration.

This time, the lawyer sent Anna's hospitalization medical records and wages to the receipt of January 2013 and the confirmation of work-related injuries.

The evidence of the expert conclusion and the notice of dissolving labor relations are all submitted to the court, but the court's decision is that Anna can get the compensation for industrial injury only 49884.4 yuan, 8306 yuan less than the ruling.

Why is this so? In lawyer analysis, it is the court of first instance that set the date for the dissolution of labor relations between the two sides in October 19, 2012.

As a result, the standard of work-related injury compensation has been extended from 2011 to 2013 in 2014, and the compensation standard is low.

In addition, not only Anna's suspension of pay leave period

Without support, the wages paid by the hotel have been deducted into the allowance for hospitalization and the cost of nursing.

"It's not right! It's wrong!" said the lawyer.

After careful examination of the court's decision, the lawyer found that Anna's departure time came from the previous trial of the second instance, and that the two judgment was based on the labor arbitration award which had no legal effect at all.

After the appeal, Anna was also worried that he could not win the lawsuit.

The lawyer took the whole case from beginning to end several times, and the more confident he was, the more he was confident.

"Although this case is a dispute over the treatment of work-related injury insurance, the basic relationship is still labor relations. Therefore, whether the labor relationship is established, when and when it is lifted is the basic fact that must be identified in this case."

For this reason, the lawyer's decision to determine the time of the two sides' dissolution of labor relations from the judgment of the first instance was a mistake in identifying the basic facts and completely reversed the case.

In order to confirm that Anna did not terminate labor relations in October 19, 2012, the lawyer suggested that neither party had proposed to terminate labor relations at this time.

Moreover, in the case of Anna's industrial injury, the employer has no right to terminate labor relations.

According to the Supreme People's court,

The ninth provision of the evidence stipulates that the court should not make a wrong judgment on the facts in the light of the effective judgment when the contrary evidence is enough to overturn the effective judgment.

Anna was identified as work-related injuries in May 23, 2014, the same year in August 25th was identified as 10 disability.

These times were later than the above time, so there was no fact that Anna had discharged the labor relationship with the hotel when he was discharged from hospital.

In addition, the pay off period is the rights and interests enjoyed by industrial injury workers, and no one can release the labor relationship with workers during the period of suspension.

The twenty-ninth article of the labor law clearly stipulates that if a worker is sick or injured, the employer shall not terminate the labor contract in accordance with the provisions of the twenty-sixth and twenty-seventh articles of this law during the prescribed medical period.

Anna's suspension period is 8 months. From August 30, 2012 to March 29, 2013, he decided that the dissolution of labor relations in November 19, 2012 was a mistake in identifying the basic facts.

In the lawyer's opinion, Anna was hospitalized for 51 days after being burned. During the period, he was unable to take care of himself because of his life.

For this reason, the guesthouse paid Anna's allowance for meals and nursing expenses during hospitalization.

Under such circumstances, it is wrong to deduct part of the suspended pay period paid by the hotel to Anna as the allowance for hospitalization meals and nursing expenses.

In the second instance, he argued with lawyers and communicated with the judges in various ways to convey his position and opinions on the case.

Through unremitting efforts, the court of second instance accepted the opinions of lawyers, and recently decided that the guesthouse paid Anna 200 yuan for the appraisal of labor capacity, 6140 yuan for the pay off period, the 6140 for a disability allowance, a one-time medical subsidy, and a one-time disability employment supplement.

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